PART 260—REQUESTS FOR RECONSIDERATION AND APPEALS WITHIN THE BOARD Authority: 45 U.S.C. 231f; 45 U.S.C. 231g; 45 U.S.C. 355. Source: 47 FR 36809, Aug. 24, 1982, unless otherwise noted. § 260.1 Initial decisions. (a) General. (1) Applications for benefits under the Railroad Retirement Act; (2) The withdrawal of an application; (3) A change in an annuity beginning date; (4) The termination of an annuity; (5) The modification of the amount of an annuity or lump-sum benefit; (6) The reinstatement of an annuity which had been terminated or modified; (7) The existence of an erroneous payment; (8) The recovery of the amount of an erroneous payment; (9) The eligibility of an individual for a supplemental annuity or the amount of such supplemental annuity; (10) Whether representative payment shall serve the best interests of an annuitant as a result of that individual's incapacity to manage his annuity payments; and (11) Who shall be designated or continued as representative payee on behalf of an annuitant. (b) Adjudication of claim and the issuance of initial decision. (c) Recovery of erroneous payment. (d) Notice of initial decision. (2) No notice of an initial decision by the Board shall be required when the death of an annuitant causes the entitlement to an annuity to cease. (3) When an initial decision is made that an annuitant's entitlement to a disability has ended, written notice of the decision shall be mailed to the annuitant or payee of an annuity at the annuitant's or payee's last known address. Such notice shall inform the annuitant or payee of an annuity: (i) Of the date on which the recovery from disability is found to have occurred; (ii) Of the reason(s) supporting such a finding of recovery; (iii) That entitlement to the annuity ends on the last day of the second month after the month in which disability ends as described in § 220.181; (iv) That the Board will stop payment of the annuitant's disability annuity with the last day of the second month following the month in which disability ends as described in § 220.181, or the last day of the first month following the month in which the notice provided by this paragraph is sent by the Board, whichever date is later: (v) That any annuity payments received after entitlement has ended will have to be repaid unless waiver of recovery is appropriate; (vi) That prior to the termination date of the annuity the annuitant or payee of an annuity may submit to the Board any information in writing which the annuitant or payee desires to be considered by the Board in its review; (vii) That if no information in writing is received by the Board before the termination date the annuity will be terminated as scheduled on that date; and (viii) That the annuitant or payee has the right to reconsideration of such decision as provided in § 260.3. (4) When an initial decision would result in the termination of an annuity for which there are competing claims or as a result of the receipt by the Board of information from a source other than the annuitant or payee of an annuity, written notice of the proposed decision shall be mailed to the annuitant or payee of an annuity at such annuitant's or payee's last known address. Such notice shall inform the annuitant or payee of an annuity: (i) Of the reason(s) for the annuity termination; (ii) That the annuitant or payee has 30 calendar days from the date of the notice to submit to the Board any information in writing which such annuitant or payee desires to be considered by the Board in its review; (iii) That payment of the annuity will either cease or a decision to continue payment of such annuity shall be made after the Board has considered any information in writing which may be submitted to the Board within 30 calendar days from the date of the notice; (iv) That if no information in writing is received within 30 calendar days from the date of the notice, payment of the annuity will cease at the end of that 30-day period; and (v) That the annuitant or payee has the right to reconsideration of such decision as provided in § 260.3. (5) Whenever the Board receives any significant information in writing from an annuitant or payee of an annuity as a result of mailing the notice described in paragraph (d)(4) of this section, the Board shall forward a copy of such information to each of the individuals who has filed a competing claim for such annuity informing them that: (i) The annuity will either be terminated at the specified time or a decision to continue payment of the annuity will be made by the Board; and (ii) They may respond to such information and their response will be considered by the Board provided that it is received by the Board within a reasonable time. When the Board decision in such case is to continue payment of the annuity, the Board shall send notice of such initial decision to each of the competing claimants in accordance with paragraph (d)(1) of this section. (6) When an initial decision that an erroneous payment has been made to a beneficiary is made under paragraph (a)(7) of this section, written notice of that decision shall be mailed to the beneficiary or payee of the benefit at such beneficiary's or payee's last known address within 30 calendar days after such decision is made. Such notice shall inform the beneficiary or payee: (i) Of the reason(s) for the decision; (ii) Of the methods by which recovery may be made; (iii) Of the possibility of waiver of recovery of the erroneous payment; (iv) Of the conditions which must be met before waiver of recovery could be granted; (v) That the beneficiary may request waiver of recovery of the erroneous payment and/or reconsideration of the erroneous payment decision as provided in § 260.4; and (vi) Of the possibility of an oral hearing with respect to the issues of waiver of recovery and reconsideration of the erroneous payment decision. [47 FR 36809, Aug. 24, 1982, as amended at 55 FR 39146, Sept. 25, 1990; 56 FR 13040, Mar. 28, 1991; 67 FR 77153, Dec. 17, 2002] § 260.2 Initial decisions on the amount of service and compensation credited to an employee. Within 30 days after receipt of a timely request by an employee for amendment with respect to the number of service months and amount of compensation credited to the employee by the Board under the Railroad Retirement Act and the Railroad Unemployment Insurance Act, the Board shall appoint a qualified employee to make a determination with respect to such matter. The employee appointed by the Board shall promptly render a decision. Written notice of such decision shall be communicated to the employee within 30 days after such decision is made. Such decision shall include notification of the employee's right to reconsideration of the initial decision as provided in § 260.3. For purposes of this section, a timely request to amend an employee's record of service months and compensation maintained under the Railroad Retirement Act shall be filed within four years after the date on which the report of service months and compensation was required to be made to the Board by the employee's employer. See § 211.16 of this chapter. [67 FR 77153, Dec. 17, 2002] § 260.3 Request for reconsideration of initial decision. (a) Right to file request for reconsideration. Provided, however, (1) An individual under age 18 shall not have the right to reconsideration of a finding of incapacity to manage his or her annuity payments, but shall have the right to contest the finding that he or she is, in fact, under age 18; (2) An individual who has been adjudged legally incompetent shall not have the right to reconsideration of a finding of incapacity to manage his or her annuity payments, but shall have the right to contest the fact of his or her having been adjudged legally incompetent; and (3) An individual shall not have the right to reconsideration of a denial of his or her application to serve as representative payee on behalf of an annuitant. Such request for reconsideration shall be filed and disposed of in the manner prescribed in this section, except that a request for reconsideration of an initial erroneous payment decision under § 260.1(a)(7) shall be filed and disposed of in the manner prescribed in § 260.4. (b) Written request for reconsideration. (c) Right to further review of initial decision. (d) Timely request for reconsideration. (1) A serious illness which prevented the claimant from contacting the Board in person, in writing, or through a friend, relative or other person; (2) A death or serious illness in the claimant's immediate family which prevented him or her from filing; (3) The destruction of important and relevant records; (4) A failure to be notified of a decision; (5) An unusual or unavoidable circumstance existed which demonstrates that the claimant would not have known of the need to file timely or which prevented the claimant from filing in a timely manner; or (6) The claimant thought that his or her representative had requested reconsideration. (e) Impartial review. (f) Timely review. (g) Right to appeal adverse decision. [47 FR 36809, Aug. 24, 1982, as amended at 48 FR 51448, Nov. 9, 1983; 55 FR 39146, Sept. 25, 1990; 67 FR 77153, Dec. 17, 2002] § 260.4 Request for waiver of recovery of an overpayment and/or for reconsideration of an initial erroneous payment decision. (a) General. (b) Request for waiver of recovery and/or reconsideration of an erroneous payment decision and for a personal conference. (c) Right to further review of an initial overpayment decision. (d) Delay in commencement of recovery of erroneous payment. (e) Impartial review. (f) Personal conference. (1) To present his or her case orally and to submit evidence, whether through witnesses or documents; (2) To cross-examine adverse witnesses who appear at the personal conference; and (3) To be represented by counsel or other person. (g) Preparation of recommended decision. (h) Timely review. (i) Right to appeal adverse decision. (j) Repayment is not a bar to requesting waiver and/or reconsideration. [47 FR 36809, Aug. 24, 1982, as amended at 55 FR 39146, Sept. 25, 1990; 67 FR 77153, Dec. 17, 2002] § 260.5 Appeal from a reconsideration decision. (a) General. (b) Appeal from a reconsideration decision. (c) Right to review of a reconsideration decision. (d) Delay in the commencement of recovery of erroneous payment. (e) Impartial review. (f) Power of hearings officer to conduct hearings. (g) Evidence presented in support of appeal. (2) The formal rules of evidence shall not apply; however, the hearings officer may exclude evidence which he or she finds is irrelevant or repetitious. Any evidence excluded by the hearings officer shall be described and that description made part of the record. (3) If, in the judgment of the hearings officer, evidence not offered by the appellant is available and is relevant and material to the merits of the claim, the hearings officer may obtain such evidence upon his or her own initiative. If new evidence is obtained after an oral hearing, other than evidence submitted by the appellant or his or her representative, the hearings officer shall provide the appellant or his or her representative with a copy of such evidence. In such event, the appellant shall have 30 days to submit rebuttal evidence or argument or to request a supplemental hearing to confront and challenge such new evidence. The appellant may move for an extension of time to submit rebuttal evidence or argument and the hearings officer may grant the motion upon a showing of good cause. (h) Submission of written argument in lieu of oral hearings. (i) Conduct of an oral hearing. (2) If the appellant objects to the time or place of the hearing, he or she must notify the hearings officer no later than 5 calendar days before the time set for the hearing. The appellant must state the reason for his or her objection. If at all possible, the request should be in writing. The hearings officer will change the time or place of the hearing if he or she finds there is good cause to do so. (3) The hearings officer shall rule on any objection timely filed by a party under paragraph (i) of this section and shall notify the party of his or her ruling thereon. The hearings officer may for good cause shown, or upon his or her own motion, reschedule the time and/or place of the hearing. If an individual objects to having a hearing by video teleconferencing, the hearings officer will find the individual's wish not to appear by video teleconferencing to be a good reason for changing the time or place of the scheduled hearing and will reschedule the hearing for a time or place where either a telephone conference call or an in person hearing will be held. The hearings officer may also limit or expand the issues to be resolved at the hearing. (4) If neither a party nor his or her representative appears at the time and place scheduled for the hearing, that party shall be deemed to have waived his or her right to an oral hearing unless said party either filed with the hearings officer a notice of objection showing good cause why the hearing should have been rescheduled, which notice was timely filed but not ruled upon, or, within 10 days following the date on which the hearing was scheduled, said party files with the hearings officer a motion to reschedule the hearing showing good cause why neither the party nor his or her representative appeared at the hearing and further showing good cause as to why said party failed to file at the prescribed time any notice of objection to the time and place of the hearing. (5) If the hearings officer finds either that a notice of objection was timely filed showing good cause to reschedule the hearing, or that the party has within 10 days following the date of the hearing filed a motion showing good cause for failure to appear and to file a notice of objection, the hearings officer shall reschedule the hearing. If the hearings officer finds that the hearing shall not be rescheduled, he or she shall so notify the party in writing. (j) Record of evidence considered. (k) Extension of time to submit evidence. (l) Hearing by telephone or video teleconferencing. (The information collection requirements contained in paragraph (b) were approved by the Office of Management and Budget under control number 3220-0007) [67 FR 77154, Dec. 17, 2002, as amended at 71 FR 55283, Sept. 22, 2006] § 260.6 Time limits for issuing a hearing decision. (a) General. (b) Submission of additional evidence. (c) Supplemental hearing. (d) Reassignment of case to another hearings officer. § 260.7 Time limits for issuing a decision when a hearing is not held. If a claimant waives his or her right to appear at a hearing and the hearings officer does not schedule the case for hearing, or the evidence in the record supports a favorable decision without a hearing, or a hearing is not required pursuant to § 260.5(g), the hearings officer shall make every effort to issue a decision within 90 days from the date the appeal is filed: Provided, however, § 260.8 Pre-hearing case review. (a) General. (1) Additional evidence pertinent to the resolution of the issues on appeal was submitted by the appellant at the time the appeal was filed, or subsequent thereto; or (2) Additional evidence pertinent to the resolution of the issues on appeal is available and should be procured; or (3) There is some other indication in the record that the initial decision may be revised in a manner favorable to the appellant. (b) Referral of case for further review by initial adjudicating unit. (c) Reconsideration of case by initial adjudicating unit. (d) Revision of initial decision in whole or in part. (e) Timely conduct of oral hearing. [47 FR 36809, Aug. 24, 1982, as amended at 67 FR 77155, Dec. 17, 2002] § 260.9 Final appeal from a decision of the hearings officer. (a) General. (b) Appeal from decision of hearings officer. Provided that (c) Timely filing. (d) Delay in the commencement of recovery of erroneous payment. (e) Submission of additional evidence. (1) Vacate the decision of the hearings officer and remand the case to the Bureau of Hearings and Appeals for issuance of a new decision. The decision of the hearings officer on remand may be appealed to the Board in the manner described in paragraph (b) of this section; or (2) Return the case to the hearings officer for further consideration with direction to submit a recommended decision to the Board. (f) Decision of the Board. (g) Issuance of decision. (1) The date the final appeal is filed; (2) The date new or better evidence is obtained in accordance with § 260.9(d) and the appellant has commented on it; (3) The date new or better evidence is obtained in accordance with § 260.9(d) and after the close of the comment period; (4) The date further argument submitted in accordance with § 260.9(e) is received; or (5) The date the record is returned to the Board following referral back to the hearings officer. (h) Review of decisions rendered prior to appeal to Board. (The information collection requirements contained in paragraph (b) were approved by the Office of Management and Budget under control number 3220-0007) [47 FR 36809, Aug. 24, 1982, as amended at 50 FR 19523, May 9, 1985; 52 FR 11017, Apr. 6, 1987; 67 FR 77155, Dec. 17, 2002; 68 FR 6820, Feb. 11, 2003] § 260.10 Determination of date of filing. (a) General rule. (b) Other dates of filing. [67 FR 77156, Dec. 17, 2002]